Orissa

Rayagada

CC/13/2018

Smt. Manjula Panda - Complainant(s)

Versus

Executive Officer - Opp.Party(s)

Self

17 Dec 2020

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL  C0MMISSION, RAYAGADA,

STATE:  ODISHA. Pin No. 765  001.

…

C.C. Case  No. 13/ 2018.                                         

P R E S E N T .

Sri  Gadadhara  Sahu,                                                                                     President.

Smt.  Padmalaya   Mishra,.                                                                           Member

 

Srimati  Manjula  Panda,  W/O: Jagadish  Panda,  AT: Sriram  Nagar,   Po: Padmapur,  Dist:Rayagada   (Odisha).  765 025.                                                                                                                                                     …. Complainant.

Versus.

1.The  Executive  Officer, Padmapur Gram Panchayat, At/Po:Padmapur, Dist:Rayagada   (Odisha).  765 025.                                                                                                                                                          

2. The Junior  Engineer, R.W.S.S., At/Po:Padmapur, Dist:Rayagada   (Odisha).  765 025.                                                   … Opposite parties.

For the Complainant:- Self.

For the O.Ps.:-Sri Pradeep Das, Advocate.

JUDGEMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non supply of drinking  water to the  house premises.  The   brief facts of the case are summaried here under.

The factual back ground  in a nutshell was that the O.Ps had declared for applying the new water connection for the consumers of Sriram Nagar colony. So the complainant had applied  for new water connection  as per the provision made by the  O.Ps.  After scrutiny all the documents the O.Ps  had advised the complainant to deposit required fees in his office and subsequently as per the advise of the O.P No.1 through letter Dt.7.3.2017  the complainant  had   deposited an amount of Rs. 5,000/- vide  receipt No. 57 Dt 07.03.2017   towards  new  connection charges.   The  O.Ps had advised    to bear  all  the expenses  which is required  under PWS  for house  new connection -.But intentionally  vide Lr. No.66 Dt.23.12.2017 the O.P.No.1 intimated  to the complainant and had refunded Rs.5,000/- in shape of  cheque No. 229424 Dt.23.12.2017  stating that  who were deposited money on Dt.7.3.2017 and after   under PWS for house new connection are not entertained  due to green signal has not received from the higher authority inter alia  due to motor  pump has no such capacity to give new water connection.      The complainant  did not get any new water connection to  her house for which she  has  sustained mental agony  and put in to irreparable loss. The complainant  is legally entitled to get the connection  but due to mischievous  activity of the O.Ps the complainant did not get  new water connection which  is more  essential for every human being.   After frequent  approached to the O.Ps  they have   paid deaf ear  and had not  given water connection to the house of the complainant.  As   per rule  one should  not be deprived of drinking water.          Further  the  complainant has  purchased all the required materials from the market for the above connection.  Hence this C.C. case. The complainant prays the forum  direct the O.Ps  to receive  Rs.5,000/- and immediately  give water connection  to the premises  of the complainant and such other  relief as the forum deems fit and proper for the best of interest of justice.

On being noticed the  O.P. No.1 & 2 appeared through their learned counsel Sri Pradeep Das    filed  written version  and  submitted that   the case is preliminarily not maintainable  under the C.P. Act, 1986 and prayed to drop the proceeding against the O.Ps 1 & 2 for the best interest of justice.

Heard arguments from the parties.    Perused the record, documents, filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                        FINDINGS.

There  is no dispute that   the  complainant had  deposited a sum of Rs.5,000/- with O.Ps counter  vide  receipt No. 57  Dt.7.3.2017  to  avail  the  drinking   water connection  to the house premises of the complainant.   (copies of the  Money receipt    is in the file which is marked as Annexure-I ).  Further there is no dispute the  O.P  No.1  vide  their Lr. No. 66  Dt.23.12.2017  returned the  deposited amount a sum of Rs.5,000/-  in shape of cheque  bearing cheque No.229424 Dt. 23.12.2017  to the complainant (copies of the  above  letter of the O.P. 1 is in the file which is  marked as Annexure-2).

The main grievances of the complainant is that direct the O.Ps  to receive  Rs.5,000/- and immediately  give  drinking  water connection  to the premises  of the complainant though  drinking water is very essential  for the  human being .      Hence this C.C. case.

The OPs despite receiving notice from this forum are failed to render service to the complainant, which amounts to deficiency in service on the part of the OP. as provisions laid down in Sec.2 (1)(d) of the Act.

This forum  observed the deficiency and negligence exhibited by   the O.Ps  are so grave that such  negligence has effected   the life and avocation of a consumer  and as such their action is deemed to have been  a breach of  the fundamental right as provided under Article- 14  of the constitution.  It is  submitted that the matter of negligence  or omission by a statutory  is to be complied soon  so that  it will not infringe the fundamental right guaranteed under the    constitution and they have a right to rectify the same and to provide such service   to the complainant  who availed   benefit  scheme.

For better appreciation this forum relied citations which are mentioned here.

It is held and reported in Current Consumer Case 2004 page No.27 where in  the Hon’ble  Supreme Court  observed  the redressal mechanism  established  under the Act is “not supposed to supplant but to supplement the existing judicial system”. It is well settled  principle of law that the statutory authority   should act under the provisions of the relevant statue and if they do  not   act accordingly, the Consumer Forum  have the jurisdiction because  not acting under the provisions of the statute/Act it amounts to deficiency   of service.

Further    It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well known  that where  two views are possible, one favourable to the consumer needs to be followed.”

Again  It is held and reported in SCC 1994 page No. 243   in  the case of  Lucknow Development Authority Vrs. M.K.Gupta were  where in the Hon’ble  Supreme Court observed  “The importance of the Act lies in promoting welfare of the society by enabling   the consumer  to participate directly  in the market economy. It attempts to remove the  helplessness  if a consumer  which he faces  against powerful business, described as,  ‘a  network of rackets’ or a society in which, ‘ producers have secured  power ‘ to ‘rob the rest’ and the might  of public bodies which are degenerating into storehouses of inaction   where papers do not move from one desk  to another as a matter of duty and responsibility, but for extraneous consideration, leaving the common man helpless, bewildered and shocked.  The malady is becoming so rampant, widespread and   deep  that  the society instead of   bothering, complaining and fighting against  it, is accepting  it as  part of life.  The enactment in these unbelievable  yet harsh  realities  appears to be a silver  lining, which may   in course of time succeed  in checking  the rot”.    

In the  above judgement the  Hon’ble Supreme Court further observed “That the authority empowered to function under  a  statute while exercising power discharges public duty; it has to  act  to  observe   general welfare in common good; in ordinary matters a common man  who has  neither the political backing nor the financial strength to match the  in action  in  public oriented  departments gets frustrated and it erodes the credibility  in the   system; where it is found that exercise of discretion was  mala fide  and the  complainant is entitled   to compensation for mental and physical harassment”.

In the above  citation  towards para- 11 the  Hon’ble  Supreme Court  where in observed “The authority empowered to function under a statute while exercising power discharges public duty. It has to act to sub serve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modem society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.”

Further it is held and reported  in 2002 C..T. J page No.477 the  Hon’ble  National Commission observed that     the C.P.Act, 1986 passed by the Parliament with a hope that the interest of the consumers has to be protected   in order to curb the exploitation from the service providers and the C.P. Act is a special   law over rides  the general law of limitation. Again  Section-3  of the C.P. Act is worded in widest terms and leaves no one in doubt that the provisions of  C.P.Act shall be in addition and not in derogation of any other law for the time being in force.  Thus even if any  other  Act provides for any remedy to  the litigant for redressal by that remedy a litigant can go to  District Consumer Forum, That remedy exists in any other law which creates the right is no bar to the Forum assuming jurisdiction. The word ‘In addition to’ in Section-3 makes it clear that the provisions of Consumer Protection Act  are in addition to the existing laws in force and the C.P. Act provides  additional  remedies  to the Consumer.

Again  It is held and reported  in A.I.R. 1973, page No. 855 in  the case of  Sirsi Municipality  Vrs. Cecelia Korm FranciesTellis the   Hon’ble  Supreme Court  clearly observed statutory provisions to be enforced.  It is settled law that when the action of the State or its instrumentalities is not  as per  the rules or regulations and supported by statute, the  court must  exercise its jurisdiction to declare such an act to be illegal and invalid.  The ratio is that the rules  or  the regulations  are binding  on the authorities. Further another citation  it is held and reported in  A.I.R. 1975  S.C. 1331 Sri Sukhadev Singh & others  Vrs.  Bhagtram  Sukdevsing Raghavanshi and another  Tellis the   Hon’ble  Supreme Court  clearly observed  that the statutory authority can not deviate from the conditions service.  Any deviation will be  enforced  by legal sanction of declaration by courts to invalidate actions  in violations of rules and regulations. In case of statutory bodies  there is no personal element what so ever because of the impersonal character of the statutory bodies. When ever a man’s right are effected by decision taken under  statutory powers, the court would  presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute.

Further   another citation  it is held and reported in  A.I.R. 1998 S.C. page  No. 1153 in Dr.Meera Massey  Vrs. Dr. S.R. Melhotra and others the   Hon’ble  Supreme Court  clearly observed  that  if the laws and principles are eroded by such  institutions, it not only pollutes its functioning  deteriorating  the standard but also  exhibit wrong channel adopted.  If there is an erosion or descending by  those who control the activities all expectations and  hopes are destroyed.  If the institution persons  dedicated and  sincere service with the  highest morality it would not only uplift many  but  being back even a limpint society  to its normalcy.

Again it is held  and reported  in 1994  S.C.C(Supreme Court Cases page No. 44 in Ramachand and  others  Vrs. Union of India and others  the Hon’ble  Supreme Court  observed   the exercise of powers  should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness.   Thus when ever any action of the authority  is found  to be in  violation of the provisions of the statute or the action is constitutionally  illegal, it cannot claim any sympathy in law and there is no obligation on the   part  of the court to sanctify such an illegal act. When ever  the statutory provisions is ignored, the court cannot  became a silent  spectator   to such  an illegality and  it  becomes the solemn duty   of  the to deal with the persons violating law with heavy hands.

Further  It is observed in this  case   due to financial crunch the  complainant has no other  option then to approach this forum for redressal of  her grievance.

            That for failure to act properly  by the O.Ps  the complainant should not be deprived of his legitmate entitlement, it is to  be ensured   that the benefit to which the consumer   is eligible after due date are entitled enjoy it and it should not became a distant dream.

            Negligence become actionable on account of injury resulting from the act or omission amounting  to negligence attributable to the person sued.  The essential components of negligence   are  three   types :- Duty, breach and resulting in damage “

           

The Hon’ble Supreme Court in the case of Poonam Verma Vrs. Ashwini Patel  reported in  SCC 1996(4) page No. 332  where in  observed  “Neglience as a tort  is the breach of  a duty caused by omission to do something which  a reasonable man would do, or doing something which a prudent man would not do”.

 

In the  present  case this forum observed  the O.Ps are statutary authority  empowered to function under a statute is required to discharge  his duty  honestly and bonafide, failed to discharge the same for the sake of general welfare and common good and its actions  are found to be  resulting  in harassment and agony to the complainant.   The  officers are the main duty  to  discharge  their duty  honestly  and the welfare schemes  of the Government will be implemented  early  and  should  be  reached  at the door steps of the  complainant/consumer with  out  facing any hindrances  to avoid  any loss inter alia deprived  of  benefit scheme.

For the best  interest of natural justice this  forum observed   the O.Ps  should   supply  drinking water   to the  house premises of the complainant  immediately without further delay to avoid further loss to the complainant  in future  observing  due Government  formalities.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed

.                              

ORDER

        In resultant  the complaint  is allowed in part on contest.

The O.Ps   are   ordered  to  supply  water   to the house premises of the complainant  within  30 days from the date of receipt of this order  observing  Government formalities. Parties  are left to bear their own cost.

The complainant is directed to deposit the required fees as prescribed by the Govt.  in the counter  of the O.P  No.I  for the above  purpose  and to  carry out  Government  formalities.

The O.P. No.1 is directed to receive  the required  amount  as prescribed by the Govt. and issue  money  receipt  in favour of the   complainant.

The OPs     ordered to make compliance the aforesaid Order within  30 days from the  date of  receipt  of this order.

   Serve the copies of above order to the parties free of cost as per rule.

 

Dictated and corrected by me

Pronounced on this            17   th.    Day of     December, 2020.

 

                                                                                                Member.                                             President